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TK's MORNING BUZZ: 'Until Studios Complain, Ebay Won't See the Sale of Screeners as Damaging and Illegal'

12 Apr, 2001 By: Thomas K. Arnold

My column Tuesday morning about studio screeners popping up on eBay a year after a big expose in the press brought promises of a crackdown elicited someinteresting responses. One was from Adrian Hickman, a longtime video retailactivist (and president of the VSDA's Delaware Valley chapter) who's been fighting "screener piracy" for quite some time.

His tale is a sad one, and needs no comment. First, his letter.

"Your column strikes home. Many of us from the VSDA DB were involved last year in a campaign to encourage eBay to watchdog the screener situation. The forwarded e-mail shows the response that I received, along with numerous taunting e-mails from eBay sellers.

"In essence, if the studio doesn't complain, eBay does nothing, even though someone like Mr. Monahan [eBay's lawyer] has prior experience in the movie industry. He double-talks his way around the situation by invoking items like the First Sale Doctrine and the DMCA to make up for the fact that eBay justdoesn't want to be bothered with doing its duty, and that is to ensure thelegitimacy of the items offered for sale.

"I stress, though, that the studios must also take an active interest in this. It amazes me that so many retailers have problems obtaining screeners for legitimate business purposes, yet so many wind up in unqualified hands.

"Ebay has started to remove bootleg product. Now it has to realize that the sale of screeners is just as damaging and illegal.

"Yet, without the studios, we can type until we are blue in the keyboard. Loopholes will always be exploited, unless the studios take action to stop this practice."

Adrian Hickman
VSDA Delaware Valley Chapter President
TLA Video

Here is the letter from eBay's counsel.

"Your email regarding video screeners on eBay was passed to me. I am Senior Intellectual Property Counsel.

"If you are a member of the VSDA then you probably know (1) that each of the studios follow different practices with respect to the types of warnings they put on their "screeners"; (2) the word "screener" is used loosely to refer to many different kinds of video products and it could be misleading to take down auctions simply because the use the word "screener"; (3) the studios vary widely in the degree to which they enforce their rights withrespect to retail screeners.

"In fact many 'screeners' do not contain the kind of language that would enable the copyright owner to overcome a first sale doctrine analysis under copyright law. If the facts were clear I'm sure the major studios, all of whom are members of our VeRO Program, would be routinely asking to have the auctions removed, and they are not.

"eBay follows the guidance of the Digital Millennium Copyright Act. That Actstates that upon proper notice we must take down materials that constitute 'apparent' infringements. Based upon all facts known to us, we have conclued that there are enough variables involved that 'screeners' cannot universally be considered infringing items and therefore are not taken down absent a report from a content owner. When we receive such a report we gladly take the items down.

"As for your comment, 'A site as big as yours should have know something about what you contract to sell," note that we don't contract to sell anything. We are a venue and our users post items to sell in an auction format.

"Also, lest you think we have no knowledge of these matter, I'll simply note that prior to joining eBay I was Vice President, World-Wide Anti-Piracy for Walt Disney Pictures & Television. I am also personal friends with BoAndersen at VSDA and would be happy to discuss this matter with him or you at your convenience."

Jay Monahan
Senior Intellectual Property Counsel
eBay Inc.

Comments? Contact TK directly at:TKArnold@aol.com

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